Dossier 22: The Need for Codification and Reform in Muslim Personal Law in India

The question of Muslim personal law
has become not only a question of Muslim identity but also a question with
deeper political implications. The Muslim leadership doggedly resist any reform
in certain aspects of the law particularly pertaining to marriage and divorce
and the Hindu communal leadership would not accept anything short of complete
abolition of personal law pertaining to Muslims. As a result the Muslim women
face problems and in some cases pretty serious ones.

The Muslim leadership
resist any change on the ground that Muslim personal law is divine and no one
can tamper with divine law and the Hindu communalists maintain that there should
be one law for one country. Both positions are fundamentally flawed. The Muslim
personal law is not divine in the sense the Quranic injunctions are. Firstly,
Shariah is based on human interpretations of divine injunctions and is an
endeavour to understand divine will and it is for this reason that there are
several interpretations of Quranic verses and four different schools in Sunni
Islam itself - Hanafi, Shafii, Maliki and Hanbali, besides Zahiri and Shiah
Schools like Ithna Ashari and Ismaili.

These different schools of
Shariah law came into existence as a result of different human interpretations
and to that extent there is always a scope for new and creative interpretations
in keeping with changed circumstances. A noted Islamic scholar and historian
Muhammad Mujib who was also vice-chancellor of Jamiah Milliah Islamiah had
described shariah as a human approach to the divine will. It is quite an apt
description of the evolution of the Shariah laws. And, besides new creative
interpretations there is tremendous scope for what is called borrowing from
another school if ones own school is creating problem. This practice was
followed in Turkey during the Ottoman period in as early as nineteenth century.
This method was also followed in drafting the Dissolution of Muslim Marriages
Act 1939. When Muslim women found it problematic to wait for 90 years if their
husbands were missing according to the Hanafi School, the Ulama, in order to
overcome this difficulty, borrowed the rule from the Maliki School which allows
the woman to wait only for a period of four years.

According to this Act a
Muslim woman can obtain decree for dissolution of her marriage on as much as
eight grounds including disappearance of her husband for four years, neglect to
pay maintenance by her husband for more than two years, if the husband has been
sentenced for a period exceeding seven years, or if the husband is found
impotent or insane or suffering from virulent venereal disease etc. This
enactment immensely benefited many Muslim women who were unable to get relief
within the Hanafi law.

It is important to note
that the Muslim personal law is a British enactment and is being followed by
Indian courts by virtue of this enactment and not because it is divine law. The
British rulers had their own agenda and made personal laws totally static by
this enactment. The Shariah law had been quite dynamic even during the Mughal
period. The Fatawa Alamgiri, set of fatwas obtained during Aurangzebs period on
various questions pertaining to Shariah are far more dynamic and liberal to
women than the Muslim personal law enacted by the British. Even the provision
for maintenance to women is much more progressive and if followed, could have
avoided the Shah Bano movement.

The British themselves
called the enactment - not shariah law – but significantly called it
Anglo-Mohammedan Law which itself is indicative of the fact that it was a
secular enactment by a secular government. Also, it must be noted that the
British applied the western notion of Justice, equity and good conscience to all
personal laws which itself is alien to the concept of Shariah law which Muslims
consider as divine. The Shariah law is supposed to be inherently just and there
is no question of any external notion of justice, equity and good conscience.
This single phrase allowed, says Scout Kugle, a USA scholar, massive invasion of
British juristic authority, despite caveat that English law itself was not to be
introduced.

In
this connection it is also important to understand that before the British the
Shariah law was administered by the swell qualified Qadis who had properly
imbibed the spirit of Islamic laws. They not only used to be thorough scholars
of shariah and knew provisions of other schools of law and applied those
provisions if justice so demanded. But the British judges, and following them
other Indian judges, pronounced judgements in keeping with the letter of the law
and followed them mechanically from Hanafi School based on Hedaya, a translation
of compilation of Hanafi law by Hamilton. It is also important to note that the
Qadis decided the cases by themselves and were not bound to follow their
predecessors. However, the British and subsequently Indian judges decided cases
on precedence rather than on the merit or situation of the case itself. The
decision of one Qadi, in other words, did not bind the other Qadi. They followed
the juristic principle of ikhtilaf i.e. mutual co-existence of differences in
interpretation to give benefit to the victim. They always filled the space
between legal rhetoric and social reality with interpretation in favour of the
sufferer.

As
Aziz al-Azmeh points out in his 'Islams and Modernisms' The shari`ah is a
nominal umbrella of a variety of different things and is by no means univocal.
The majority of its rulings do not have the finality attributed to them by
modern studies. With few exceptions, Islamic law is a body of differences and of
general rulings...they (Islamic legal elaborations in addition to governmental
statutes) adduce a multiplicity of conflicting precedents, rulings, deductions,
all of which are considered equally legitimate.

A Muslim Qadi was well
aware of these differences, conflicting precedents, rulings and deductions and
thus ruled in a particular case in the best interest of the victim. However,
such benefits were not available to the victim, particularly women in matters of
marriage, divorce or maintenance, as after the British enactment of the
Anglo-Mohammedan Law, the British judges began to treat law as quite static and
went more by the precedents than by consideration of relieving the victims of
suffering.

The
Muslim leaders need to understand this today and work sincerely for much needed
reforms in Muslim personal law particularly in matters of marriage, divorce and
maintenance. They should not treat the enactment by secular government as divine
and static. They should also note, as pointed out above, the cases are decided
not by the Qadis but by secular judges. The secular judges, as is obvious,
cannot follow the spirit of Islamic law but the law as laid down by the
enactment. Unfortunately it is commonly believed by the Muslims that the
personal law as enacted in India is divine. There is urgent need to remove this
misconception and pave the way for necessary reforms within the Islamic
framework.

It
is also necessary to understand that the Caliphs also issued certain injunctions
from time to time known in the shariah terminology as tazir which were
necessitated by developing situation and these injunctions too, though not
divine, became integral part of Shariah over a period of time. The triple
divorce in one sitting for example, was not practiced during the holy prophets
time, during the fist caliph Hazrat Abubakrs time and during first two years of
2nd Caliph Hazrat Umars time. But the 2nd Caliph Umar enforced it in the third
year of his reign to combat its misuse by some unscrupulous elements. But in
certain schools of Sunni Islam it became a part of Shariah because of the
rulings given by some noted jurists in its favour and today it is considered a
part of divine law which it is not. Triple divorce, it must be noted, is not
universally accepted by all schools of Sunni law, let alone Shiahs and Ismailis.
The great theologian of 14th century Imam Ibn Taymiyyah decisively rejected it
and considered it as against the principles of Islam. He wrote extensively
refuting the practice.

Ahl-e-Hadis, among Sunni
Muslims also reject it and question its validity. However, it has become an
integral part of Muslim personal law in India as most of the Muslims are Hanafis
and Hanafi school accepts its validity. There are Sharii Muslims in South,
particularly in Tamilnadu and Kerala and Shafii School also permits it. But
today this form of divorce is causing suffering to many Muslim women and needs
to be reformed. The Ulama should take initiative as they did in 1939 and got the
Dissolution of Muslim Marriage Act. The Alim of the stature of Maulana Ashraf
Thanvi Had then taken initiative in getting this provision enacted to relive
suffering of many Muslim women who had to wait for inordinately long period
according to the Hanafi Law in case their husbands were missing.

Such an initiative is
urgently needed today to relieve Muslim women of suffering due to triple divorce
too. In fact the Muslim personal law as it operates today in India needs to be
thoroughly overhauled and compiled properly. The British enactment cannot be
perpetuated forever under the misconception of divinity. As it results in
injustices to women it looses its Islamic character. As far as Islam is
concerned justice is the central value. One cannot think of Islamic value-system
without justice.

No doubt it is a Herculean
task to undertake compilation of Muslim personal law and very difficult to
evolve consensus but nevertheless it is highly necessary. One will have to
borrow provisions from different schools of law to evolve a just compilation.
and, as pointed out above, this practice is not alien to Islam. In fact it was
resorted to from time to time to serve the ends of justice and give benefit of
provisions of other schools to the suffering women. The precedent of Dissolution
of Muslim Marriage Act is there to follow.

Unfortunately the Ulama,
particularly the Muslim Personal Law Board has adopted very rigid stance on the
question of reform. Their usual argument is that it will open floodgates of
change and interference from government. This is not a sound logic in any case.
Justice is far more important than imaginary fear. The Ulama took initiative in
1939 and it did not open floodgates of reform or interference. It did, on the
other hand, immense good to hundreds of suffering Muslim women. No law can
remain static over a long period of time without causing suffering to those for
whom it is meant.

If the Quranic provisions
of marriage and divorce are enforced it would do immense good to Muslim women.
The Quran neither permits easy divorce nor unrestricted polygamy. It is true
these verses pertaining to marriage and divorce have been differently
interpreted, the Ulama will have to evolve a consensus around the
interpretations best suited to the rights of women. Many Muslim countries have
done it already and just because Muslims are in minority in India the ulama
should not deer the process of reform and change within the Islamic framework.
They should remember that Muslim women are also a minority within Muslim
minority and they also need justice.